DCIT (IT) 4(3)(1), MUMBAI vs. UBS AG, MUMBAI

O R D E R

PER AMARJIT SINGH, JM:

1) On the facts and circumstances of the case and in law, whether the Ld. CIT(A) erred in deleting the penalty u/s 271(1)(c) in the case of the assessee by treating the explanation submitted by the assessee as bona-fide. A.Y.2008-09

2. On the facts and circumstances of the case and in law, whether the Ld. CIT(A) erred in holding that the explanation provided by the assessee with respect to Underwriting Commission in that the AO had taxed it as business income and Ld. CIT(A) had considered it taxable as „fees for technical services‟ and hence was bona-fide, while the fact is that the assessee had not considered the same as taxable at all without any basis in the note filed with the return of income.

3. On the facts and circumstances of the case and in law, whether the Ld. CIT(A) erred in holding that the explanation provided by the assessee in its note to the return of income as bona-fide when in fact the same is against the decision of Hon‟ble Delhi High Court in the case of M/s. Zoom Communication Pvt. Ltd. (327 ITR 510) in which it was held that submitting claim which is incorrect in law would not be bona-fide specially when only a minuscule percentage of return filed are selected for scrutiny.”

3. The brief facts of the case are that the assessee filed its return of income on 30.09.2008 declaring total income to the tune of Rs.41,31,73,442/-. The assessee has shown the income under the following head: - Sr. No. Income from other sources-sub head Amount 1 Interest income 15,90,22,500 2 Advisory fees 22,11,85,691 3 Management cost recharges 1,60,01,941 4 IT Cost Re charges 1,60,63,310 Total 41,31,73,442

4. The assessee is Foreign Institutional Investor registered with the SEBI. The assessee is a tax Resident of Switzerland and claimed benefit under DTAA. The assessment of the assesse was completed u/s 143(3) r.w. Section 144C(3) of the I. T. Act, 1961 on 09.02.2012 assessing total income to the tune of Rs.75,99,33,801/-. The AO disallowed a sum of Rs.15,80,80,000/- under the head underwriting commission and an amount A.Y.2008-09 of Rs.18,86,80,359/- claimed as Short Term Capital Gain on debt securities treated as business income. The CIT(A) treated the income on sale of debt securities as Short Term Capital Gain and subsequently held as exempt within the meaning of Article 13(6) of the India-Switzerland DTAA Treaty. The claim of the assessee was treated as FTS as against assessee claim as underwriting Commission and the said income was held to be taxable in India. This ground was partly decided by the CIT(A) in favour of the assessee as income under the head of business income was not accepted, however these receipts were accepted as „Fee for technical service‟ and the claim of the assessee was also declined that the same was not taxable in India so these facts were treated as conceal of income in the present case. Undoubted, the Hon‟ble ITAT has confirmed the finding of the CIT(A). Thereafter the penalty proceeding was initiated u/s 271(c) of the Act, hence, the AO levied the penalty in sum of Rs.1,58,08,000/- u/s 271(C) of the Act. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who deleted the penalty, therefore, the revenue has filed the present appeal before us.

5. We have heard the argument advanced by the Ld. Representative of the parties and perused the record. We noticed that the assessment of the assessee was completed u/s 143(3) r.w. Section 144C(3) of the I. T. Act, 1961 on 09.02.2012 assessing total income to the tune of Rs.75,99,33,801/-. The AO disallowed the underwriting commission in sum of Rs.15,80,80,000/- and disallowed the claim of Short Term Capital on debt securities treated as business income in sum of Rs.18,86,80,359/-. The CIT(A) treated the income on sale of debt securities as Short Term Capital Gain and subsequently held as exempt within the meaning of Article 13(6) A.Y.2008-09 of the India-Switzerland DTAA Treaty. However, the claim of underwriting commission in sum of Rs.15,80,80,000/- was partly allowed in favour of the assessee because the same was not treated as business income. In fact, these receipts were treated as „Fee for Technical Service. The claim of the assessee was that the same was not taxable in India but the same was found taxable in India, therefore, the penalty was initiated and levied. The Ld. Representative of the revenue has argued that the CIT(A) has wrongly deleted the penalty, therefore, finding of the CIT(A) is not justifiable, hence, is liable to be set aside. However, the Ld. Representative of the assessee has strongly relied upon the order passed by the CIT(A) in question. Before going further, we deem it necessary to advert the finding of the CIT(A) on record.: - “5. I have considered the facts of the case. In this case, the assessee filed the return of income on 30.09.2008 declaring a total income of Rs.41,31,73,442/-. In the return of income, firstly, the assessee claimed a sum of Rs.15,80,80,000/- under the head Underwriting Commission considered by the assessee as not taxable. Secondly the gains on the transfer of debt securities of Rs.18,86,80,359/- were also considered by the assessee as not taxable. The case was selected for scrutiny and the Assessing Officer assessed the total income of Rs.75,99,33,801/- taking the total receipts of the assessee as income and initiated penalty proceedings u/s.271(1)(c) of the I.T. Act,1961. Aggrieved by the AO's order, the assessee preferred an appeal before the CIT(A) who considered the issues and decided that Underwriting commission is taxable as Fees for Technical Services @ 10% on gross basis under Article 12 of the DTAA and gains on transfer of debt securities is assessable as 'Capital Gains' and not 'Business Income' and the same is exempt under Article 13(6) of the DTAA. As a result of the CIT(A) order, the demand was reduced from Rs.14,64,36900/- to Rs.1,58,08,800 (Rs.6,67,57,184 in respect of underwriting fees and Rs.7,96,79716/- in respect of gains from transfer of debt securities). The Department filed an appeal before the ITAT as regards the issue of gains from transfer of debt securities and the assessee filed cross objections before the ITAT. The Hon'ble ITAT vide order dated 17.04.2015 upheld the order of the CIT(A) and held that the gains on transfer of debt securities are taxable as capital gains and A.Y.2008-09 not as business income and the same shall be exempt under Article 13(6) of the DTAA and as the department has not appeal before the Hon’ble High Court against the order of the ITAT. Thus, as there is difference between the admitted income and the income decided by the [TAT, the AO in pursuance of the provisions of the Act initiated penalty proceedings u/s.271(1)(c) stating that the assessee had furnished inaccurate particulars of income to the extent of underwriting fees and issued notices to assessee to accord an opportunity of being heard. Aggrieved AR appeared before the AO for the penalty proceedings and submitted its reply objecting to the move of the AO to levy penalty that the claim made on the underwriting commission was based on legal interpretations, assessee's act was not misleading, false or deceptive, the assessee company has not concealed particulars of income and mere additions and difference of opinion does not result in levy of penalty. The AO did not accept the submission of the assessee concluding that the assessee was very much aware of the fact that underwriting receipts were taxable in India, Inspite of this, assessee has formed wrong belief about non taxability of these receipts in India and assessee has furnished inaccurate particulars of income to the extent of not offering underwriting commission and levied penalty of Rs.1,58,08,000/- u/s.271(1)(c) of the I.T.Act,1961. Aggrieved by the action of the AO, the assessee filed appeal before the CIT(A) raising the grounds of appeal. During the course of appellate proceedings, the assessee made detailed submissions. The gist of the submissions is with regard to 1st issue i.e. claiming of exemption from tax in respect of capital gains on transfer of debt securities and treating the underwriting fee as not taxable in India. From the plain reading of sec. 271(1)(c) of the Income-Tax Act, 1961 the following facts emerge. If the (assessing) officer or the [commissioner (Appeals)) [or the principal commissioner] [or the commissioner] in the course of any proceedings under this Act, is satisfied that any person. (c) has concealed the particulars of his income or furnished inaccurate particular of [such income or] He may direct that such person shall pay by way of penalty: - Explanation 1 - Where in respect of any facts material to the computation of the total income of any person under this Act- (A) Such person fails to offer an explanation or offers an explanation which is found by the [Assessing] Officer or the A.Y.2008-09 commissioner (Appeals) [or the principal commissioner] [or the commissioner] to be false, or (B) Such person offers an explanation which he is not able to substantiate [and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him. In the light of language of sec. 271(1)(c) the case is being discussed].

2. The first requirement for imposing penalty u/s.271(1)(c) "if any person has concealed the particulars of such income" From the perusal of appellant's submission during the course of appellate proceedings following facts come to light vis-a-vis the first requirement of sec. 271(1)(c) of the I.T. Act.

3. As per the AO's finding the appellant has concealed the particulars of his income. It was submitted by the appellant that it filed the ITR-verification form duly signed along with paper return in Form ITR-6 which included the notes to the return on Oct. 10, 2008. In the notes to the return, the appellant had clearly made the following disclosure with respect to underwriting commission which is subject matter of the AO's penalty order. "Fees underwriting agreement" "During the financial year 2007-08 UBS has received fee underwriting agreement with Indian Companies. The fee received by UBS in relation to such underwriting agreement is not liable to tax in India." From the above fact it is clear that the appellant has not concealed the particulars of the income. He was of the constant believe that the above income is not taxable in India. The above facts does not fall under the second requirement of sec. 271(1)(c) that the appellant has filed inaccurate particulars of his income. The appellant has bonafidely filed all the particulars of income and was of the belief that the said income does not attract tax. At this juncture it is worthwhile to being to light the initiation of penalty u/s. 271(1)(c) by the AO. The AO has during the course of assessment proceedings has made addition on two points. The first addition was made in the head Underwriting Commission which was considered by the appellant as not taxable and which was added by the AO under the head "Business Income." The second addition was made on the head on the gains on transfer of debt securities which was also held by the appellant as not taxable. A.Y.2008-09 The CIT(A) decided that Underwriting Commission is taxable as 'fees for Technical Services @ 10% on gross basis under Article 12 of the DTAA and gains on transfer of debt securities is assessable as capital gains and not business income and the same as exempt under Article 13(b) of the DTAA. The Hon’ble ITAT upheld the order of CIT(A). The department has not gone in appeal before the High Court. Now only Question of additions being confirmed against which the assessee had not gone in appeal before the ITAT was Underwriting Commission. The point which is important and needs mention is this addition on Underwriting Commission is that AO has treated it as business income and CIT(A) has treated it as 'fees for technical services'. The appellant submits that initiation of penalty proceedings made by the AO was on treating Underwriting Commission as business income which was changed to 'fees for technical services by the CIT(A) and hence penalty u/s. 271(1)(c) is not attracted under this set of circumstances. In the light of above discussion penalty u/s. 271(1)(c) imposed by the AO is deleted.”

6. On appraisal of the above mentioned finding, we noticed that the factual position is not in dispute. The assessee filed the return of income on 30.09.2008 declaring total income to the tune of Rs.41,31,73,442/-. The assessee claimed a sum of Rs.15,80,80,000/- under the head underwriting commission as non-taxable. Secondly, the gains on the transfer of debt securities of Rs.18,86,80,359/- was also considered as non-taxable. The case was selected for scrutiny and the AO assessed the income in sum of Rs.75,99,33,801/- considering all receipts as taxable and penalty proceeding u/s 271(c) of the Act was initiated. The CIT(A) has decided the matter of controversy to the fact that the underwriting commission was taxable as „Fee for Technical Service‟ @ 10% on gross basis under Article 12 of the DTAA and gains on transfer of debt securities was assessable as „Capital Gains‟ and not „Business Income‟ and the same is exempt under Article 13(6) of the DTAA. The CIT(A) reduced the demand in sum of Rs.14,64,36,900/- to Rs.1,58,08,800/-. The Hon‟ble ITAT has confirmed the order of the Ld. CIT(A). In the above facts and circumstances, the